Criminal code climax

April 22, 1980

Long and arduous negotiations in Congress over legislation to update, simplify, and streamline the US criminal code are gradually nearing a climax. Some 14 years of give-and-take lie behind the two pending reform bills, one of which is expected to be taken up April 23 by the House Judiciary Committee and the other, soon after that, by the entire Senate. Reform of the 3,000 conflicting, outdated laws that make up the unwieldy federal criminal code is much overdue. It would be a pity if election-year politics or a last-minute slew of short-sighted amendments were allowed to derail the legislation at this late date.

This is not to say that all problems have been eliminated in some of the proposed changes -- problems which need to be addressed. The sentencing provisions in the Senate version are a key example. They would eliminate parole and provide longer prison sentences than are currently required for a wide range of crimes (considerably longer terms than in the House version). And, at a time when prison overcrowding is a national disgrace, they fail to encourage judges to make greater use of alternatives to imprisonment -- i.e., work release, restitution, and community service.

Moreover, the so-called bail reforms, with their disturbing implications, are still in the Senate bill and ought to be deleted. Civil libertarians and the American Bar Association as well caution against instituting what amounts to a form of "preventive detention," or punishment by jailing before a defendant has been tried and found guilty of committing a crime. Under current law, bail can only be used to ensure a defendant's presence at trial. The proposed changes would give judges broader discretion to deny bail even when a suspect is deemed likely to return to court. Judges already have the necessary authority to jail a suspect who poses a clear danger to the community.

Still, there are a number of significant criminal-code improvements in the proposed legislation. For instance, antiquated prohibitions against such now unlikely offenses as detaining carrier pigeons and dealing with foreign powers by private citizens would be deleted. A host of modern-day crimes such as consumer fraud, white-collar crime, and environmental pollution are addressed for the first time.

One important, long delayed reform recently attached to the House bill (and expected to be added to the Senate version) would go a long way toward eliminating abuses in the US grand jury system. It would allow witnesses appearing before a grand jury to have a lawyer with them in the room instead of merely available for consultation outside. Grand jury proceedings have often become the captive of overzealous prosecutors anxious to secure an indictment for political or other reasons. Under current law a witness called to testify before a grand jury appears alone under a prosecutor's often hostile questioning. His testimony can be used against him at a later trial. There is no judge to serve as referee. The sessions are conducted in secret. In short, a grand jury witness is defenseless and largely at the mercy of the prosecutor.

The ABA and many top prosecutors have long argued that the mere presence of a lawyer in the grand jury room to advise a witness, even if the attorney is barred from addressing the grand jury, would restrain prosecutors from badgering witnesses. The lawyer would also serve as a witness to the questioning. This proposed change could help restore fairness and justice to grand juries and better equip them to fulfill their original function -- to be an impartial search for truth, carefully balancing the rights of the individual against the state's duty to uncover criminal activity.

Such essential reforms ought not to be allowed to slip away at this late date. A continuation of the kind of careful and persistent deliberations that have marked the debate since the enormous task of rewriting the criminal laws began seven Congresses ago is still needed. With the end in sight, Congress must not let up now in striving to give Americans as strong and equitable a criminal code as possible.